( 26 1
December 6■ and 7.
GUNATILAKE v. SILTA.D. C., Chilaw, 1,767.
Alleged hQirs in possession—Action for declaration of title—Want of adminis-tration to the estate of ' the intestate—Civil Procedure Code, s. 647-Ordinance No. 15 of 1876.
An ' intestate having died before the passing of the Civil ProcednreCode, his estate remained nnadministered for several years, being in thehands of a lessee under a lease granted by the intestate shortly beforehis death. On the expiry of. the lease a dispute arose between thebrothers and sisters of the intestate, on the one hand, and the vendees ofcertain of his' illegitimate children, on the other hand.
Held, that, as the estate was of greater value than Bs. 1,000, no actionwas maintainable for the recovery of the property without letters ofadministration being taken out to the- estate of the intestate.
Per Lawbie, J.—it the date of the ihstitution of this action, theland _ was still in bonis defuncti. It did 'not pass into the peacefulpossession' of the heirs. Section 547 of the Civil Procedure Codeapplies to such a case.
I reserve my opinion on the question whether this section applies to acase where the heirs designated by the Ordinance No. 15 of 1876 haveentered into possession. In such a case I am inclined to hold that theproperty has ceased to be part of the intestate's estate, and that theheirs, as minors, may sue for its recovery.
Bonsbb, C.J.—It was urged that as the alleged heirs, the plaintiffs,had been once in possession, they were entitled to maintain an actionnot as possessors, because they did not come in time, but for a declara-tion of their title, and that the fact of their having been in possession,took the case out of section 547. I cannot follow that argument or accedeto it.
N action for declaration of title and ejectment' by certainbrothers and sisters of one Batnapala Unnanse, a Buddhist
monk, against three defendants who filed different answers. Thefirst defendant, claiming to be owner of a share of the land,admitted having sold it to second defendant in 1897; the seconddefendant. claimed a share by purchase and prescriptive possession;and the third defendant pleaded .that his interests as lessee underthe first and second defendants ceased in 1894.
( 27 )
It appeared at the trial that Batnapala Unnanse and one Jaya-wardane bought each an allotment of land from the Crown in1660; that they exchanged the lands in 1871, but passed no deedof transfer to each other; that from 1871 to 1887 the monkcontinued in peaceful possession, and leased it to one EserisAppu in September, 1887, for a period of seven years; that themonk died in 1888, leaving several children by different mothers;that the title of the defendauts was also derived from certainIllegitimate children of the monk; that in 1898 the defendantsousted the lessee and held forcible possession up to the day ofplaintiff’s action, whioh was raised in April, 1898.
Defendants called no evidence, 'pnd the District Judge, afterhearing the witnesses for plaintiffs, granted judgment for them.
Wendt, for appellant.
Sampayo (with H. Jayawardena), for respondent.
Cut. adv. vult.
7th December, 1900. Bonser, C.J.—
The action in this case is brought by certain persons whoallege that they are the heirs of one Batnapala Unnanse, whodied in the year 1888, possessed of a piece of land, the subject ofthis action, and stated to be of the value of Bs. 2,000. Thedefendants are said to be the illegitimate children of the reverendgentleman by several mothers. It appears that they set up aclaim to succeed to his property and took possession of tins pieceof land. The plaintiffs, who allege that they were in possessionand were dispossessed, did not bring a possessory suit to berestored to possession, but after the lapse of some years havebrought the present action to have it declared that they areentitled to this land, and they claim that the defendants beejected therefrom and plaintiffs put in possession. BatnapalaUnnanse died intestate, and no letters of administration havebeen taken out to his estate. The District Judge held underthese circumstances that the action was not maintainable, andthat the case was governed by section 547 of the Civil ProcedureCode, which provides that no action shall be maintainable for therecovery -of any property, movable or imnyrvable, in Ceylonbelonging to the estate or effects' of any person dying testate orintestate in or out of Ceylon, where such estate and effectsamounts to or exceeds in value the sum of Bs. 1,000, unlessprobate or letters of administration duly' stamped shall first havebeen issued.-
December <rand 1.
December 6and t.
( 28 )
The plaintiffs have appealed, and I have had some difficulty inunderstanding the ground on which the appeal is based. It wasurged that, because they had once been in possession they werein some way or another entitled to maintain an action, not aspossessors, because they did' not come in time, but an action fordeclaration of their title, and that the fact of their having beenin possession somehow took the case out of section 547. Now Imust say that I cannot follow that argument or accede to it. Itseems to me that where it is necessary to allege and prove, aspart of the plaintiff’s case, that the property claimed was theproperty of a deceased person, and that -the plaintiff is' entitled tothat property as bis heir, it must be shown that probate or letters •of administration have been taken*—to- the estate of the deceasedand the duty paid. I do not understand how it was that, whenthe attention of the District Court was called by the previouslitigation to the fact that no administration had been taken out,it refrained from setting the law in motion by requiring -‘thatsome person should be appointed to represent the estate. Bothunder the old Rules and- Orders and the Civil Procedure Code theduty is cast on the District Court of seeing that administration istaken out to the estate of persons who die intestate possessed ofproperty.
I am of opinion that section 547 applies, and that this action isnot .maintainable. It is true that the intestate died before thepassing of the Civil Procedure Code, „ but for several years afterhis death his estate remained unadministered, being in thehands of a lessee under a lease granted by the intestate, shortlybefore his death. On the expiry of the lease a dispute arosebetween plaintiff and the vendors to the defendants. Eachdenied that the other was the heir of the deceased. A't the dateof . the institution of this action the land was still in bonisdefuncti. It did not pass into the peaceful possession of the heirs.It seems to me that this action by the plaintiffs, who allege thatthey are the next of kin, against defendants who purchased fromothers whom they allege to be the real next of kin, is an actionfor the recovery of property belonging .to the estate of a personwho died intestate in Ceylon. • The estate is of greater valuethan Rs. 1,000. If this is so, section 547 is imperative, and thisaction is not maintainable because administration was not takenout.
I reserve my opinion on the question whether this sectionapplies to a case where the heirs designated by the Ordinance
No. 15 of 1876 have entered into possession, and have been forsome .time in quiet enjoyment of the inheritance. In suohcircumstances I am inclined to hold that the property has ceasedto be part of the estate of the intestate, and the heirs, as ownera.are entitled-to bring an action to recover their own property.
December 6and 1.
GUNATILAKE v. SILVA